1999 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

8-27-1999

Kreider Dairy Farms, Inc. v. Glickman

Precedential or Non-Precedential:

Docket 98-1906, 981982,98-1983

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"Kreider Dairy Farms, Inc. v. Glickman" (1999). 1999 Decisions. Paper 240.

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Filed August 27, 1999 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

Nos. 98-1906, 98-1982 and 98-1983 

KREIDER DAIRY FARMS, INC., 

a Pennsylvania Family Farm Corporation 

v. 

DAN GLICKMAN, Secretary of the United 

States Department of Agriculture 

Dan Glickman, 

 Appellant in No. 98-1906 

(D.C. 98-cv-00518) 

KREIDER DAIRY FARMS, INC., 

a Pennsylvania Family Farm Corporation 

v. 

DAN GLICKMAN, Secretary of the United 

States Department of Agriculture; 

AHAVA DAIRY PRODUCTS, INC. 

Kreider Dairy Farms, Inc., 

 Appellant in No. 98-1982 

(D.C. 95-cv-06648) 

KREIDER DAIRY FARMS, INC., 

a Pennsylvania Family Farm Corporation 

v. 

DAN GLICKMAN, Secretary of the United 

States Department of Agriculture 

Kreider Dairy Farms, Inc., 

 Appellant in No. 98-1983 

(D.C. 98-cv-00518) 
Appeal from the United States District Court 

for the Eastern District of Pennsylvania 

District Judge: Honorable Edward N. Cahn 

ARGUED: June 9, 1999 

Before: SLOVITER and MANSMANN, Circuit Judges, 

and WARD,* District Judge. 

(Filed: August 27, 1999) 

 Marvin Beshore, Esquire (ARGUED) 

 Dawn L. Lisi, Esquire 

 Milspaw & Beshore 

 130 State Street 

 P.O. Box 946 

 Harrisburg, PA 17108-0946 

 COUNSEL FOR KREIDER 

 DAIRY FARMS 

 David W. Ogden, Esquire 

 Acting Assistant Attorney General 

 Michael R. Stiles, Esquire 

 United States Attorney 

 Barbara C. Biddle, Esquire 

 United States Department of Justice 

 Civil Division, Appellate Staff 

 10th & Pennsylvania Avenue, N.W. 

 Washington, D.C. 20530-0001 

 Michael E. Robinson, Esquire 

 United States Department of Justice 

 Appellate Section 

 950 Pennsylvania Avenue, N.W. 

 Washington, D.C. 20530 

_________________________________________________________________ 

*Honorable Robert J. Ward, United States District Judge for the 

Southern District of New York, sitting by designation. 

 2 
 Douglas Hallward-Driemeier, Esquire 

 (ARGUED) 

 United States Department of Justice 

 Civil Division, Appellate Staff 

 601 D Street, N.W. 

 Washington, D.C. 20530-0001 

 COUNSEL FOR UNITED STATES 

 DEPARTMENT OF AGRICULTURE 

OPINION OF THE COURT 

MANSMANN, Circuit Judge. 

These appeals implicate important issues related to our 

appellate jurisdiction in the context of a dispute over dairy 

regulations. Specifically, we must determine the extent to 

which our jurisdiction extends to District Court orders 

remanding for further factual findings in administrative 

proceedings in light of Forney v. Apfel, 524 U.S. 266, 118 

S. Ct. 1984 (1998). We hold today that because the 

discussion on appellate jurisdiction in Forney is founded 

upon specific language located within the Social Security 

Act, the holding in Forney does not extend to all District 

Court orders remanding for further administrative 

proceedings. We also reaffirm our longstanding rule that we 

lack jurisdiction over District Court orders remanding for 

further administrative findings unless an important legal 

issue has been finally determined which would evade

appellate review in the absence of an immediate appeal. 

Applying these principles to the appeals before us, we 

find that we lack jurisdiction over the appealfiled by 

Kreider Dairy Farm, Inc. ("Kreider") in 1998 from a 1996 

District Court order which remanded for further factual 

findings relating to the merits of the dairy dispute. 

Accordingly, we will dismiss Kreider's appeal (No. 98-1982) 

for lack of jurisdiction. Under these same principles, 

however, we find that we do have appellate jurisdiction over 

the timely appeal filed by the Secretary of the United States 

Department of Agriculture ("USDA") from the District 

Court's August 10, 1998 order reversing a USDA 

 3 
determination that Kreider's administrative appeal on 

remand was untimely (No. 98-1906) and remanding for

further administrative proceedings on the merits. 

With respect to the merits of the USDA's appeal, we hold 

that the District Court erred in exercising jurisdiction over 

Kreider's appeal and accordingly will vacate the District 

Court's 1998 Order. Finally, we will dismiss summarily 

Kreider's "cross-appeal" from the District Court's August 

10, 1998 order (No. 98-1983) as Kreider has informed us 

that it never intended to cross-appeal from that order and 

has not pursued that cross-appeal in its briefing or at oral 

argument before us. 

I. 

These appeals come to us after a long and tortured 

procedural history that spans nearly a decade. Because this 

procedural history is central to our decision, we shall 

discuss it in some detail. By contrast, because we do not 

reach the merits of the parties' dispute over the dairy 

regulations at issue in these appeals, the underlying factual 

background that forms the basis of that dispute will be 

discussed only generally.1 

A. 

Kreider is a dairy farm corporation that produces and 

distributes packaged kosher fluid milk within the New 

York-New Jersey milk marketing area with the aid of two 

independent subdistributors. The production and sale of 

milk within the New York-New Jersey milk marketing area 

is regulated by Order 2 which was promulgated under the 

Agricultural Marketing Agreement Act of 1937 ("AMAA"), 7 

U.S.C. S 601 et seq. Under Order 2, certain milk producers 

can qualify for producer-handler status which entitles them 

to an exemption from paying certain fees in connection with 

_________________________________________________________________ 

1. For a more detailed discussion of the merits of the dairy regulation 

dispute see Kreider Dairy Farms, Inc. v. Glickman, No. Civ. A. 95-6648, 

1996 WL 472414 (E.D. Pa. August 15, 1996); In re: Kreider Dairy Farms, 

Inc., 94 AMA Docket No. M-1-2, 1995 WL 598331 (U.S.D.A. September 

28, 1995). 

 4 
the sales of milk. Kreider first applied for producer-handler 

status under Order 2 by letter dated December 19, 1990. 

The Market Administrator ("MA") responsible for 

administering Order 2 denied Kreider's application for 

producer-handler status, finding that Kreider did not meet 

the producer-handler requirements due to Kreider's use 

of independent subdistributors. See generally 7 C.F.R. 

S 1002.12(b)(1999) (setting forth exclusive control

requirements for producer-handler exemption). On 

December 23, 1993, Kreider challenged the MA's decision 

by filing a petition with the USDA pursuant to section 

608c(15)(A) of the AMAA. 

After a December 14, 1994 hearing, an Administrative 

Law Judge ("ALJ") issued a decision holding that Kreider 

was entitled to producer-handler status under Order 2. The 

Agricultural Marketing Service appealed to a Judicial 

Officer ("JO") of the USDA, who acts on behalf of the 

Secretary of Agriculture in all adjudicative matters. See 7 

C.F.R. S 2.35 (1999). The JO reversed the ALJ's decision, 

holding that Kreider was not entitled to producer-handler 

status. See In re: Kreider Dairy Farms, Inc., 94 AMA Docket 

No. M-1-2, 1995 WL 598331 (U.S.D.A. September 28, 

1995). 

On October 18, 1995, Kreider filed a complaint pursuant 

to the AMAA in the District Court challenging the JO's 

decision. See AMAA, 7 U.S.C. S 608c(15)(B)(1994). By 

opinion and order filed August 15, 1996 ("1996 Order"), 

the District Court denied the parties' cross motions for 

summary judgment and remanded for further 

administrative findings on whether Kreider was"riding the 

pool," i.e., whether Kreider was the type of dairy for which 

producer-handler status should be denied pursuant to the 

promulgation history of the producer-handler exemption. 

See Kreider Dairy Farms, Inc. v. Glickman, No. Civ. A. 95- 

6648, 1996 WL 472414 (E.D. Pa. August 15, 1996). Neither 

Kreider nor the USDA appealed the District Court's 1996 

Order at that time. 

B. 

On remand, the ALJ held a hearing and issued a decision 

on August 12, 1997 holding that Kreider was "riding the 

 5 
pool" and therefore was not entitled to producer-handler 

status. Under applicable regulations, the ALJ's decision 

becomes effective thirty-five (35) days after service upon the 

parties unless appealed to the JO thirty days (30) after 

service. See 7 C.F.R. SS 900.64(c), 900.65(a)(1999). The 

ALJ's decision was served on Kreider on August 15, 1997. 

On September 12, 1997, Kreider moved for an extension 

of time to file its appeal from the ALJ's August 12, 1997 

decision. The JO granted Kreider an extension until

September 19, 1997. On September 19, 1997, Kreider sent 

its appeal via Federal Express next day delivery. The Office 

of the Hearing Clerk stamped Kreider's appeal as received 

on September 25, 1997. 

On January 12, 1998, the JO issued an opinion denying 

Kreider's administrative appeal as untimely because, under 

applicable regulations, an administrative appeal is deemed 

to be filed "when it is postmarked, or when it is received by 

the hearing clerk." 7 C.F.R. S 900.69(d)(1999). The JO held 

that because the term "postmarked" requires a United 

States Postal Service postmark, a date label generated by 

Federal Express does not toll the appeal period. See In re: 

Kreider Dairy Farms, Inc., No. 94 AMA Docket No. M-1-2, 

1998 WL 25746, at *8 (U.S.D.A. January 12, 1998). Kreider 

filed a timely motion for reconsideration. 

While Kreider's motion for reconsideration was pending 

before the JO, Kreider filed a complaint with the District 

Court on February 2, 1998 challenging the ALJ's August 

12, 1997 decision and noting that the JO had denied its 

appeal as untimely.2 The JO denied Kreider's motion for 

_________________________________________________________________ 

2. An appeal to the District Court must be taken within twenty days of 

the entry of the administrative decision. See 7 U.S.C.A. 

S 608c(15)(B)(1994). If Kreider had filed a complaint on February 2, 1998 

challenging the JO's January 12, 1998 decision rather than a motion for 

reconsideration, Kreider's February 2, 1998 complaint would have 

constituted a timely appeal of that decision because the twentieth day 

after entry, February 1, 1998, fell on a Sunday. As Kreider conceded 

before the District Court, however, the District Court lacked jurisdiction 

over Kreider's February 2, 1998 complaint challenging the ALJ's August 

12, 1997 decision because that decision was not afinal administrative 

determination. See Kreider, 1998 WL 481926 at *7; see also 7 C.F.R. 

S 900.64(c)(1999)(stating that no decision isfinal for purposes of 

judicial 

review except a final decision issued by the Secretary pursuant to an 

appeal by a party to the ALJ proceeding). 

 6 
reconsideration on February 20, 1998. On April 3, 1998, 

Kreider filed an amended complaint challenging the JO's 

January 12, 1998 and February 20, 1998 decisions. The 

USDA filed a motion to dismiss. 

By opinion and order entered August 10, 1998 ("1998

Order"), the District Court denied the USDA's motion to 

dismiss, vacated the JO's January 12, 1998 and February 

20, 1998 decisions, and remanded for the JO to consider 

the merits of Kreider's appeal of the ALJ's August 12, 1997 

decision. See Kreider Dairy Farms, Inc. v. Glickman, No. 98- 

518, 1998 WL 481926 (E.D. Pa. August 10, 1998). The

District Court held that because Kreider's April 3, 1998 

amended complaint challenging the JO's decisions related 

back to Kreider's initial complaint filed on February 2, 

1998, Kreider's appeal of the JO's January 12, 1998

decision was timely. The District Court further determined 

that because the JO erred in holding that a United States 

postmark was required under applicable regulations,

Kreider's appeal to the JO from the ALJ's decision was 

timely and should have been considered by the JO. The 

District Court accordingly entered the 1998 Order 

remanding for the JO to consider the merits of Kreider's 

appeal from the ALJ's determination that Kreider was riding 

the pool and therefore was not entitled to producer-handler 

status. 

C. 

On October 7, 1998, the USDA filed a timely appeal from 

the District Court's 1998 Order which was docketed with 

us at 98-1906. On October 21, 1998, Kreider filed a crossappeal. In Kreider's notice of appeal, Kreider listed the 

docket numbers from the District Court's two prior 

proceedings hoping to bring an appeal from the District 

Court's 1996 Order. Kreider's cross-appeal was treated as 

two separate appeals: 1) a cross-appeal from the District 

Court's 1998 Order (docketed at 98-1983); and 2) an appeal 

from the District Court's 1996 Order (docketed at 98-1982). 

On October 30, 1998, we sent a letter to the parties 

questioning our jurisdiction over Kreider's appeal from the 

District Court's 1996 Order. We invited submissions by the 

 7 
parties outlining the basis for our jurisdiction. Both parties 

submitted letters. In its letter, the USDA contends that we 

have jurisdiction over Kreider's appeal from the District 

Court's 1996 Order under Forney v. Apfel, 524 U.S. 266 

(1998) and Sullivan v. Finkelstein, 496 U.S. 617 (1990). In 

addition, both the USDA and Kreider cite Forney as the 

basis for our jurisdiction in their briefs. Kreider also asserts 

various other grounds for jurisdiction in its letter. Both 

parties seem to recognize that Kreider never intended to file 

a cross-appeal from the District Court's 1998 Order. 

II. 

Even though Kreider and the USDA agree that we have

jurisdiction over the appeals before us, it is well established 

that we have an independent duty to satisfy ourselves of 

our appellate jurisdiction regardless of the parties' 

positions. See, e.g., Collinsgru v. Palmyra Bd. of Ed., 161 

F.3d 225, 229 (3d Cir. 1998). The District Court orders 

from which both Kreider and the USDA have appealed are 

orders remanding for further administrative proceedings. 

Normally, an order remanding for further proceedings is not 

a final order subject to immediate appellate review under 

28 U.S.C. S 1291. See AJA Assocs. v. Army Corps of Eng'rs, 

817 F.2d 1070, 1073 (3d Cir. 1987)(quoting United 

Steelworkers of Am., Local 1913 v. Union R.R. Co., 648 F.2d 

905, 909 (3d Cir. 1981)). Naturally, however, this general 

rule is subject to several exceptions.3 

A. 

We traditionally have recognized an exception to the 

general finality rule for certain District Court orders 

remanding for further administrative proceedings. 

Specifically, we have exercised appellate review when a 

District Court finally resolves an important legal issue in 

reviewing an administrative agency action and denial of 

_________________________________________________________________ 

3. We refer to "exception" in its general sense that the order on appeal 

has not resolved all of the issues with respect to all of the parties. We 

agree with the concurrence that only Congress can set forth the 

jurisdiction of the federal courts. 

 8 
appellate review before remand to the agency would 

foreclose appellate review as a practical matter. See AJA, 

817 F.2d at 1073 (citing Horizons Int'l, Inc. v. Baldrige, 811 

F.2d 154 (3d Cir. 1987)); Union R.R., 648 F.2d at 909. 

An example of an immediately appealable remand under 

this exception is found in AJA, 817 F.2d 1070. After the 

Army Corps denied AJA's application for a permit, AJA filed 

suit in District Court. AJA, 817 F.2d at 1071-72. The 

District Court denied the Corps' motion for summary

judgment and remanded holding that AJA was entitled to 

an administrative hearing. Id. at 1072. The Corps appealed. 

We exercised jurisdiction over the Corps' appeal even 

though the District Court's order remanding for further 

administrative proceedings was not a final order. We noted 

that the District Court had resolved an important legal 

issue opening the door to arguments by all applicants that 

they are entitled to a hearing prior to a permit denial. Id. at 

1073. In addition, we found that the issue may evade 

appellate review; if the Corps granted AJA a permit on 

remand, the Corps would be unable to appeal the hearing 

issue and if the Corps denied AJA a permit, the issue of 

whether AJA is entitled to a hearing would be moot. Id. For 

these reasons, we held that the Corps' appeal fell within 

our previously recognized exception to the finality rule. 

B. 

In addition to our well established exception to the 

finality rule for certain District Court orders remanding for 

further administrative proceedings, the Supreme Court 

recently carved out a very specific exception to the finality 

rule for remand orders under the Social Security Act. See 

Forney, 524 U.S. 266, and Finkelstein, 496 U.S. 617. In 

Finkelstein, the Court held that the District Court's order 

effectively holding that certain regulations were invalid and 

remanding for further administrative findings without 

resort to those regulations was immediately appealable. The 

Court relied heavily upon specific language within the 

Social Security Act in reaching this decision.4 The Court, 

_________________________________________________________________ 

4. Specifically, the Court found that a District Court's order remanding 

for further administrative proceedings under the Social Security Act is a 

 9 
however, also noted that if benefits were awarded on 

remand under the inquiry mandated by the District Court 

"there would be grave doubt" as to whether the Secretary 

could appeal his own order. Finkelstein, 496 U.S. at 625. 

As the Court's recent decision in Forney makes clear, 

however, the Finkelstein rationale is limited to the specific 

language found in the Social Security Act. In Forney, the 

Court held that not only can the Secretary appeal 

immediately an order remanding for further administrative 

proceedings, but that a claimant equally is entitled to 

appeal a District Court order remanding for further

administrative proceedings. The Court reasoned that

Finkelstein primarily was based on the language of the 

Social Security Act and that the reasoning in Finkelstein 

does not "permit an inference that `finality' turns on the 

order's importance, or the availability (or lack of availability) 

of an avenue for appeal from the different, later, agency 

determination that might emerge after remand." Forney, 

524 U.S. at ___, 118 S. Ct. at 1987. 

After Forney, it is clear that Finkelstein did not simply 

apply our general exception to finality to a social security 

case, but rather created a separate exception to thefinality 

rule based on the language of the Social Security Act. 

Accordingly, Forney cannot be read to extend appellate 

jurisdiction to all District Court orders remanding for 

further administrative proceedings as the parties contend, 

but rather speaks only to appellate jurisdiction under 

statutes containing language comparable to that found in 

the Social Security Act. This conclusion is supported by the 

_________________________________________________________________ 

final judgment subject to immediate appeal under the following 

language: 

 [T]he district court shall have the power to enter `a judgment 

 affirming, modifying, or reversing the decision of the Secretary, 

with 

 or without remanding the cause for rehearing.' 

 * * * 

 `[t]he judgment of the court shall be final except that it shall be 

 subject to review in the same manner as a judgment in other civil 

 actions.' 

Finkelstein, 496 U.S. at 625 (emphasis in original). 

 10 
fact that, to date, no court has applied Forney to a case not 

arising under the Social Security Act. As the USDA 

concedes, the AMAA does not contain language comparable 

to that found in the Social Security Act. Forney and 

Finkelstein therefore do not control our jurisdiction over 

these appeals. 

C. 

Given that Forney and Finkelstein do not control our 

jurisdiction over these appeals, we return to our general 

exception to the finality rule to determine whether we have 

jurisdiction over either of the appeals before us. 

Specifically, we must determine whether either the 1996 

Order or 1998 Order finally resolves an important legal 

issue over which appellate review would be foreclosed as a 

practical matter in the absence of an immediate appeal. 

In its 1996 Order, the District Court determined that 

the language relating to producer-handler status was 

ambiguous and that it was appropriate to resort to the 

promulgation history of the provision at issue. The District 

Court then remanded for further factual findings as to 

whether Kreider was the type of dairy the provision was 

meant to include. On remand, the ALJ determined that 

Kreider was not entitled to producer-handler status. This 

determination was subject to review by a JO and then by 

the District Court. 

Under our exception to the finality rule, the 1996 Order 

is not subject to immediate appeal. It does notfinally 

resolve a particularly important legal issue and, more 

importantly, it is not an order that will evade appellate 

review. Absent an order that would evade review, our 

interest in avoiding piecemeal litigation and duplicative 

efforts overrides any interest we may have in entertaining 

the merits of Kreider's appeal at this juncture. Accordingly, 

our traditional exception to finality in agency proceedings 

does not afford us jurisdiction over Kreider's appeal from 

the 1996 Order.5 

_________________________________________________________________ 

5. At oral argument, the USDA asserted that if we intended to examine 

the merits of Kreider's appeal, the USDA could file a cross-appeal from 

 11 
Our exception, however, does provide appellate 

jurisdiction over the USDA's timely appeal from the 1998 

Order. This order vacated the JO's determination that 

Kreider's appeal was untimely and remanded for the JO to 

hear the merits of Kreider's appeal from the ALJ's decision. 

This decision resolves an issue of law that may evade 

review if immediate appeal is not permitted; should Kreider 

receive the relief it seeks on remand, it is doubtful that the 

USDA would be able to appeal its own decision in order to 

raise the procedural issues decided by the District Court in 

its 1998 Order. Therefore, under our exception for agency 

appeals, we have jurisdiction over the USDA's appeal from 

the 1998 Order.6 

III. 

Having established that we have jurisdiction over the 

USDA's appeal of the District Court's 1998 Order, we turn 

now to the merits of that appeal. The USDA asserts that the 

District Court erred in exercising jurisdiction over Kreider's 

appeal and in holding that Kreider's administrative appeal 

was timely. Because we agree that it was improper for the 

District Court to exercise jurisdiction over Kreider's appeal, 

_________________________________________________________________ 

the District Court's 1996 Order at this juncture to bring its position on 

the merits before us. Setting aside the obvious problems with the 

timeliness of such an appeal at this late date, we wish to make clear that 

because the District Court's 1996 Order is not afinal order over which 

we have appellate jurisdiction, the USDA is equally precluded from 

appealing the 1996 Order. 

6. Our exception to the finality doctrine for agency appeals mirrors to a 

large extent the collateral order doctrine, which Kreider has raised as a 

possible basis for our jurisdiction over its appeal. Under the collateral 

order doctrine, an otherwise non-final order is immediately appealable if 

it finally and conclusively determines the disputed question, resolves an 

important issue separate from the underlying merits, and is effectively 

unreviewable after final judgment. See In re Tutu Wells Contamination 

Litig., 120 F.3d 368, 378 (3d Cir. 1997)(citing Cohen v. Beneficial Indus. 

Loan Corp., 337 U.S. 541, 546 (1949)). Under either exception to the 

finality rule, we have jurisdiction over the USDA's appeal but not 

Kreider's appeal. We likewise reject Kreider's other asserted grounds for 

our jurisdiction over its appeal as baseless. 

 12 
we will vacate the District Court's 1998 Order without 

reaching the issue of whether Kreider's administrative 

appeal was timely. 

After the District Court's initial remand via the 1996 

Order, Kreider first filed a complaint in the District Court 

on February 2, 1998. In this complaint, Kreider sought 

review of the ALJ's August 12, 1997 decision on the merits. 

At that time, Kreider's motion for reconsideration of the 

JO's January 12, 1998 order, which dismissed Kreider's 

administrative appeal as untimely, was still pending. It is 

clear to us that the District Court did not have jurisdiction 

over Kreider's February 2, 1998 complaint. 

First, as the District Court recognized, it did not have 

jurisdiction to review the ALJ's August 12, 1997 decision 

because that decision is not a final agency decision subject 

to judicial review. See Kreider, 1998 WL 481926 at *7. 

Second, even if Kreider's February 2, 1998 complaint had 

challenged the JO's January 12, 1998 decision, which it did 

not, the District Court would have lacked jurisdiction to 

review that decision at that time due to Kreider's pending 

motion for reconsideration. See Stone v. INS, 514 U.S. 386, 

391 (1995)(noting the general rule that the timely filing of 

a motion to reconsider an agency's action generally renders 

the underlying order nonfinal for purposes of judicial 

review); West Penn Power Co. v. United States Envtl. 

Protection Agency, 860 F.2d 581, 584 (3d Cir. 1988) (same).7 

Because the District Court lacked jurisdiction to 

entertain any appeal by Kreider on February 2, 1998, the 

date Kreider filed its first complaint, the District Court 

erred in exercising jurisdiction under the theory that 

Kreider's April 3, 1998 amended complaint related back to 

Kreider's February 2, 1998 complaint. An amended 

complaint that purports to relate back to an original 

complaint asserting an improper appeal which wasfiled on 

a date upon which the District Court would have lacked 

_________________________________________________________________ 

7. The courts have recognized a limited exception to this rule for 

immigration cases based upon language found in the Immigration and 

Naturalization Act. See Stone, 514 U.S. at 393-95. Because the AMAA 

contains no comparable language, this exception does not apply to 

Kreider's appeal. 

 13 
jurisdiction over the appeal raised in the amended 

complaint, must be dismissed for lack of jurisdiction. See, 

e.g., Reynolds v. United States, 748 F.2d 291, 293 (5th Cir. 

1984) (holding that District Court properly dismissed for 

lack of jurisdiction amended complaint that could only 

relate back to pleading filed on a date upon which the 

District Court would have lacked jurisdiction over the 

issues asserted). Absent a viable relation back theory, 

Kreider's April 3, 1998 complaint is an untimely appeal of 

the JO's January 12, 1998 decision.8 Accordingly, because 

the District Court lacked jurisdiction over Kreider's appeal 

of the JO's January 12, 1997 decision, we will vacate the 

District Court's 1998 Order. 

IV. 

For the foregoing reasons, we will dismiss summarily 

Kreider's cross-appeal from the District Court's 1998 Order 

(No. 98-1983), dismiss Kreider's appeal from the District 

Court's 1996 Order (No. 98-1982) for lack of jurisdiction, 

and vacate the judgment of the District Court in the 

USDA's appeal from the District Court's 1998 Order (No. 

98-1906). 

_________________________________________________________________ 

8. Kreider does not dispute that its April 3, 1998 amended complaint 

was filed more than twenty days after the District Court's February 20, 

1998 denial of Kreider's motion for reconsideration of the JO's January 

12, 1998 decision and therefore is untimely absent a viable relation back 

theory. See 7 U.S.C. S 608c(15)(B)(1994). 

 14 
SLOVITER, Circuit Judge, concurring. 

I concur in the opinion of Judge Mansmann. I write 

separately to express my concern that our opinions, and 

those of other courts, dealing with the issue of appellate 

jurisdiction over district court orders remanding to an 

administrative agency have used language that is 

inconsistent with basic principles of federal jurisdiction. In 

particular, I take issue with language referring to our 

jurisdiction in that instance as an "exception" to the finality 

rule. See, e.g., Bridge v. United States Parole Commission, 

981 F.2d 97, 101-02 (3d Cir. 1992); United States v. 

Spears, 859 F.2d 284, 287 (3d Cir. 1988); Perales v. 

Sullivan, 948 F.2d 1348, 1353 (2d Cir. 1348). In plain 

words, there can be no judicially created "exception" to the 

jurisdiction Congress has granted the courts of appeals. 

I. 

Any analysis of the jurisdiction of the courts of appeals 

must begin with the recognition that under our 

Constitutional separation of powers it is Congress that sets 

the jurisdiction of the federal courts, and the judiciary has 

no power to make exceptions to the congressional 

determinations in that respect. See United States v. 

Hollywood Motor Car Co., 458 U.S. 263, 264 (1982) (per 

curiam); see also 15A Charles Alan Wright, Arthur R. 

Miller, and Edward H. Cooper, Federal Practice and 

Procedure S 3905, at 232 (2d ed. 1991). 

When Congress made its initial division of the 

jurisdiction between the federal trial courts and the 

appellate courts, it drew the line at final decisions. "The 

general principle of federal appellate jurisdiction, derived 

from the common law and enacted by the First Congress, 

requires that review of nisi prius proceedings await their 

termination by final judgment." DiBella v. United States, 

369 U.S. 121, 124 (1962) (citing First Judiciary Act, SS 21, 

22, 25, 1 Stat. 73, 83, 84, 85 (1789)); see also 15A Wright, 

Miller & Cooper, supra, S 3907, at 268 ("For two centuries, 

 15 
the final judgment rule has been the heart of appellate 

jurisdiction in the federal system.").9 

With few exceptions, that remains the touchstone today. 

The Supreme Court has explained that the final judgment 

rule discourages piecemeal appeals which carry with them 

the potential for harassment and excessive costs for 

litigants, see Cobbledick v. United States, 309 U.S. 323, 

325-26 (1940); 15A Wright, Miller & Cooper, supra, S 3905, 

at 239, and protects the independence of the district judge, 

see Firestone, 449 U.S. at 374. The final judgment rule has 

survived because it is generally believed that it"promot[es] 

efficient judicial administration." Id. (citing Eisen v. Carlisle 

& Jacquelin, 417 U.S. 156, 170 (1974)). 

Over the years, Congress has made discrete decisions 

"that particular policies require that private rights be 

vindicable immediately." See Digital Equip. Corp. v. Desktop 

Direct, Inc., 511 U.S. 863, 880 n.7 (1994) (discussing 

provision for immediate appeal under 9 U.S.C. S 16(a) when 

district court declines to send case to commercial 

arbitrator). However, such a decision is always 

characterized by an express congressional judgment. See, 

e.g., 28 U.S.C. S 1292(a)(1) (authorizing appeal from 

interlocutory orders granting, modifying, denying etc. 

injunctions); 28 U.S.C. S 1292(b) (authorizing interlocutory 

appeal on certification). The Supreme Court has cautioned 

that the existence of those congressional policy judgments 

"by no means suggests that [the courts] should now be 

more ready to make similar judgments for themselves" and 

to expand the scope of appellate jurisdiction beyond that 

set by Congress. Digital Equip. Corp., 511 U.S. at 880 n.7. 

II. 

It follows that the references to "exceptions" to our 

statutorily authorized jurisdiction are misguided. Even the 

Supreme Court has no power to make an exception to the 

_________________________________________________________________ 

9. A final judgment is "a decision by the District Court that ends the 

litigation on the merits and leaves nothing for the court to do but 

execute the judgment." Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 

368, 373 (1981). 

 16 
finality rule that does not have a statutory predicate. 

Nonetheless, opinions of the lower federal courts repeatedly 

refer to the collateral order "exception" emanating from the 

holding of Cohen v. Beneficial Industrial Loan Corp., 337 

U.S. 541 (1949), that the courts of appeals have jurisdiction 

over "a small class of orders" that, albeit not the final 

decision in the case, resolve important questions completely 

separate from the merits, which would be effectively 

unreviewable were they to wait appeal from the final 

judgment in the underlying action. The notion of an

"exception" to the finality doctrine is illogical as Congress 

alone establishes our appellate jurisdiction. 

The collateral order doctrine was hardly a new theory of 

finality never previously comprehended. More than two 

decades earlier, the Court stated that, althoughfinal 

judgments are the rule, 

 it is well settled that an adjudication final in its nature 

 as to a matter distinct from the general subject of the 

 litigation and affecting only the parties to the particular 

 controversy, may be reviewed without awaiting the 

 determination of the general litigation. 

United States v. River Rouge Improvement Co., 269 U.S. 

411, 414 (1926). 

A leading treatise observes that "[t]he most certain aspect 

of collateral order appeals is that they depend on 28 U.S.C. 

S 1291, and thus must be characterized as appeals from 

`final decisions.' " 15A Wright, Miller & Cooper, supra, 

S 3911, at 347; see also id. S 3911, at 349 (emphasizing 

that S 1291 "remains the only available foundation" for 

collateral orders doctrine). Indeed, the Supreme Court has 

repeatedly adopted the view that jurisdiction to hear an 

appeal from a collateral order falls within the authority 

conferred by S 1291. 

In Johnson v. Fankell, 520 U.S. 911, 917 (1997), the 

Court stated: "In [Cohen], as in all of our cases following it, 

we were construing the federal statutory language of 28 

U.S.C. S 1291." In his scholarly opinion in Digital Equipment 

Corp., Justice Souter explained that "[t]he collateral order 

doctrine is best understood not as an exception to the `final 

decision' rule laid down by Congress in S 1291, but as a 

 17 
`practical construction' of it." 511 U.S. at 867. See also 

Firestone, 449 U.S. at 368 ("Cohen did not establish new 

law; rather, it continued a tradition of givingS 1291 a 

`practical rather than a technical construction.' "); Coopers 

& Lybrand, 437 U.S. 463, 468 (1978) ("[T]he Court held [the 

Cohen order] appealable as a `final decision' under

S 1291."); Abney v. United States, 431 U.S. 651, 658 (1977) 

("[T]his Court held [in Cohen] that the Court of Appeals had 

jurisdiction under S 1291 to entertain an appeal from the 

District Court's pretrial order." (emphasis added)). 

I agree with the majority that the two cases arising under 

the Social Security Act, Sullivan v. Finkelstein, 496 U.S. 

617 (1990), and Forney v. Apfel, 524 U.S. 266 (1998), 

represent an exception to the final judgment rule. But the 

exception is one made by Congress, not the courts. 

In Finkelstein, the Court considered the jurisdiction of 

the courts of appeals to hear an appeal by the Secretary of 

Health and Human Services from a district court's order 

invalidating regulations issued by the Secretary and 

remanding to the agency for renewed consideration of the 

claim for benefits. The Court observed that the language of 

42 U.S.C. S 405(g) in the Social Security Act permitted a 

district court to enter " `a judgment affirming, modifying, or 

reversing the decision of the Secretary, with or without 

remanding the cause for a rehearing.' " Id. at 625 (quoting 

S 405(g)) (emphasis omitted). Further, S 405(g) made clear 

that such a judgment was " `final except that it shall be 

subject to review in the same manner as a judgment in 

other civil actions.' " Id. (quotingS 405(g)) (emphasis 

omitted). In light of this language, the Court concluded that 

Congress had "define[d] a class of orders as `final

judgments' that by inference would be appealable under 

S 1291." Id. at 628. Justice Blackmun concurred, but 

stated he would have treated the appeal as falling within 

the confines of the collateral order doctrine. Id. at 632 

(Blackmun, J., concurring). 

The issue arose eight years later in Forney v. Apfel, 524 

U.S. 266 (1998). There, it was an individual seeking 

benefits, rather than the government, who appealed the 

district court's decision following a remand to the agency 

under S 405(g). The Court rejected the collateral order 

 18 
theory as the basis for appellate jurisdiction and 

emphasized, in a unanimous opinion, that Congress had 

created a class of orders through S 405(g) that were 

appealable as final orders under S 1291. Thus, because the 

district court decisions at issue in Finkelstein and Forney 

were a class of orders declared "final" by Congress by 

construction of the language of the Social Security Act, they 

provide little assistance on the issue facing us now, the 

appealability of an order remanding to an agency under a 

statute that has no comparable provision for appeal. 

Of course, it would have facilitated our decision as to our 

appellate jurisdiction over an order remanding to an 

administrative agency if Congress had explicitly provided 

for such, and it may be that cases such as this will lead it 

to consider doing so. In any event, the precedent allowing 

such an appeal in appropriate circumstances, including 

that from this court, precludes any retreat now. 

The most obvious analog, and the one relied on by many 

courts of appeals, is the collateral order doctrine, 

notwithstanding the fact that most of the agency remand 

orders would not qualify because the remand would rarely 

be on an issue separate from the merits. See 15B Wright, 

Miller & Cooper, supra, S 3914.32, at 240 (asserting that 

"[a]n impressive number of cases" permit appeal under the 

doctrine). It has been suggested that the tendency is to 

accept the appeals of government agencies, apparently 

because "administrative agencies, as more or less 

coordinate branches of government, deserve the protection 

of special appeal opportunities." Id. at 56-57 n.9 (Supp. 

1999) (citing, inter alia, Bergerco Canada v. United States 

Treasury Dep't, 129 F.3d 189, 191-92 (D.C. Cir. 1997); 

Baca-Prieto v. Guigni, 95 F.3d 1006, 1008-09 (10th Cir. 

1996); Hanauer v. Reich, 82 F.3d 1304, 1306-07 (4th Cir. 

1996); Schuck v. Frank, 27 F.3d 194, 196-97 (6th Cir. 

1994)). But see Cotton Petrol., Inc. v. United States Dep't of 

the Interior, 870 F.2d 1515, 1521-22 (10th Cir. 1989); AJA 

Assocs. v. Army Corps of Eng'rs, 817 F.2d 1070, 1072-73 

(3d Cir. 1987)). 

Wright, Miller, and Cooper have summarized the reasons 

courts rely on the collateral orders doctrine. In some 

circumstances, an agency may be statutorily barred from 

 19 
appealing its own decision. In others, the agency's decision 

will render the issue moot, because the agency has 

complied with the district court's order. Additionally, 

agencies ought not face the risk of contempt to prompt an 

immediate appeal, or the danger that the agency will be 

unable to recapture later any benefits paid in the interim. 

See 15B Wright, Miller & Cooper, supra , S 3914.32, at 240- 

41. 

I agree that a practical construction of finality suffices to 

justify review of an agency remand order in appropriate 

cases. Such an approach is a considerable improvement 

over viewing the basis of our jurisdiction as an"exception 

to finality." 

A True Copy: 

Teste: 

 Clerk of the United States Court of Appeals 

 for the Third Circuit 

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